Response To The Pregnancy Information Disclosure and Protection Ordinance

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Support Circle is a non-profit medical clinic in the San Francisco Bay Area that provides pregnancy testing, ultrasounds and emotional support to women looking for resources as they face unplanned pregnancies. In 2011, the City of San Francisco passed a city ordinance that targeted pro-life pregnancy centers—and only pro-life pregnancy centers—for restrictions on their speech. … Continue reading

Big Win in the Supreme Court for NIFLA

On June 26, in NIFLA v. Becerra, the Supreme Court issued a great win for the free speech rights of pregnancy centers. The Court ruled that California’s FACT Act, by forcing pro-life speakers to promote abortion, likely violates the First Amendment. This result also clears the way for a favorable outcome in Support Circle’s case, which remains pending. It is especially satisfying to see that the Court’s majority opinion reflects some of the points made in Support Circle’s briefs. We continue to be thankful for our excellent legal team, and for our loyal supporters as we move forward.

The staff give great praise to God for the ruling, as we hold onto Isaiah 54:17 – “No weapon forged against you will prevail, and you will refute every tongue that accuses you. This is the heritage of the servants of the Lord, and this is their vindication from me, declares the Lord.”

LATEST NEWS

Cert petition filed with U.S. Supreme Court on February 1, 2018. All further updates will be posted on the Official Case Site moving forward.

Support Circle filed an Amicus Brief with the Supreme Court on January 16, 2018. This brief summarizes the pregnancy center cases and how they have distorted First Amendment law.

Fourth Circuit Court of Appeals Decision

In January 2018, the 4th Circuit Court of Appeals ruled in favor of a Baltimore pregnancy center in a case that is similar to the Support Circle case. The court ordered the city of Baltimore to “lay down the arms of compelled speech” it had taken up against life-affirming pregnancy centers, once and for all. It also found that, despite years of investigation, there was no evidence of any deception by pregnancy centers. Support Circle is encouraged by the 4th Circuit Court ruling. Since the 4th Circuit ruling comes to a different result than the 9th Circuit ruling in this case, Support Circle hopes that it influences the Supreme Court to take their case.

The docket number in the 9th Circuit Court of Appeals is: 15-15434. [The case number in the District Court (Northern District of California) is: 4:11-cv-05534-SBA].

Status: First Resort has since filed a petition for En Banc review with the Ninth Circuit which was denied in September. They will be filing for Certification with the U.S. Supreme court before the end of 2017.

SUMMARY

San Francisco has passed a false advertising law called the “Pregnancy Information Disclosure and Protection Ordinance” claiming its intention is “to prohibit Limited Services Pregnancy Centers from making false or misleading statements to the public about pregnancy-related services the centers offer or perform.” At first glance this seems benign.

But this ordinance is not actually about consumer protection since there has not been a single instance of a Support Circle client claiming to have been misled. The Ordinance is actually a pretext for directly attacking pregnancy centers by giving the City Attorney the power to intimidate, fine, and litigate them simply because he disagrees with their viewpoint.

Even worse, Planned Parenthood affiliates of Northern California Chief Legal Counsel Beth Parker said: “Because it was upheld by the Ninth Circuit, it gives a roadmap for adopting similar ordinances. At least within the Ninth [Circuit], there’s a good expectation those ordinances will be upheld against a challenge. Indeed, other cities and states could use it.”

Soon after this Ordinance was passed, Support Circle (formerly known as First Resort) filed a lawsuit against the City Attorney Dennis Herrera to challenge the constitutionality of the legislation. So far, both the District Court and the Ninth Circuit Court of Appeals (First Resort, Inc. v. Herrera, et al., U.S. Court of Appeals for the Ninth Circuit, Case No. 15-15434) have upheld the Ordinance. Support Circle has since filed a petition for en banc review with the Ninth Circuit which was denied in September. We will be filing a petition for review by the U.S. Supreme Court before the end of 2017.

This ordinance is one of the most dangerous versions of the anti-pregnancy center laws currently attacking the free speech rights of pregnancy centers around the country, due in part to its enforcement provisions. These provisions allow the City Attorney to fine pregnancy centers $500 for each instance of “misleading advertising.” The ordinance also has no clear violation guidelines, and so it problematically allows the City Attorney to decide what is “misleading.” This is a recipe for abuse. The City Attorney has already explicitly expressed his position that merely having Support Circle’s ads populating under the search terms “abortion San Francisco” is grounds for enforcement and would incur fines in the hundreds of thousands of dollars which would put us out of operation.

WHY SUPPORT CIRCLE OPPOSES THIS ORDINANCE

It’s A False Accusation

There have been zero claims from any Support Circle clients claiming to have been misled by our advertising.

The City was unable to identify even one person who suffered any of the harms that the Ordinance purports to protect against.

Support Circle’s website clearly states that they do not perform or refer for abortion and explains why and how their services are beneficial to those considering abortion. As Supervisor Sean Elsbernd declared in the public hearing:

“There has been no testimony, documentation, no affidavits of any woman, any service, someone seeking service who has been misled. There is nothing in the record documenting that. What I fear we are doing today is passing a solution in search of a problem.”

Support Circle has always upheld the highest standards of integrity and truthfulness with its clients and the public.

It Violates Basic Fairness Under The Law

Support Circle has been maliciously targeted by this legislation for political gain and the Ordinance is unequally applied. It invents a new category called “limited services pregnancy center” and defines that as a pregnancy services center “that does not directly provide or provide referrals to clients for the following services: abortions; or emergency contraception.” This completely exempts centers that provide or refer these services. Support Circle is one of only two organizations in San Francisco that fit in the Ordinance’s newly created category – neither of which was proven to have actually engaged in false advertising.

It Engages in Viewpoint Discrimination

The Ordinance turns the City Attorney’s office into the thought police by granting him the power to issue a letter itemizing the things he deems to be misleading—EVEN BY OMISSION—with a demand to “cure” within 10 days or face fines of $500 per violation. There are no objective parameters for determining what must be included in a given advertisement to avoid being accused of omitting information. Dangerously, the Ordinance relies solely on the subjective opinion of the City Attorney. Herrera declared in a press conference at City Hall that he views the mere presence of Support Circle’s Google ads under the keywords “abortion San Francisco” to be false and misleading. This is a recipe for opinion suppression which is a direct violation of the First Amendment.

It Poses A Threat To All Non-Profits

Historically nonprofits have not been considered commercial organizations. The Ninth Circuit’s recent ruling adopted a sweeping new definition of “commercial speech” that now applies to all nonprofits.

All of Support Circle’s services have always been completely free of charge. Yet the Ninth Circuit labeled Support Circle’s speech to be “commercial.”

The court’s rationale is that an organization has an “economic motive” to advertise, whenever the amount of services provided affects fundraising—even though nothing about the way the organization serves people is commercial. This dangerous reasoning extends the definition of “commercial speech” to the point of “commercializing” the speech of allnonprofit organizations who seek patrons and funds. This means that this kind of city legislation can be used to attack and intimidate anykind of nonprofit… soup kitchens, homeless shelters, nonprofit schools, churches, animal shelters, etc.

This new definition is unprecedented and a threat to nonprofits everywhere. The ordinance is a threat to ALL kinds of non-profits because with the ruling in our case, the Ninth Circuit adopted a sweeping new definition of “commercial speech” that guts the First Amendment and commercializes the speech of all nonprofit organizations.

The new definition essentially deems the speech of a nonprofit to be commercial because it has an economic motive. And it further specifies that there is an economic motive when the amount of services the nonprofit provides could affect its fundraising. This is such a broad definition that literally all nonprofits fit under it.

For example:

The number of bowls of soup served by a soup kitchen could affect its fundraising, therefore its speech is commercial.

The number of animals an animal shelter rescues could affect its fundraising, therefore its speech is commercial.

The number of members a union recruits would affect its revenue from dues, therefore its speech attracting new members is commercial.

There Is An Existing False Advertising Law Already In Place

The Ordinance is totally unnecessary. The State has California Business and Professions Code §17500 et seq. already in place. The city Ordinance legislates what is the state’s jurisdiction to enforce. This threatens the sovereignty of the California legislature and the balance of state and local power.

WHY DOES THE CITY CLAIM THIS ORDINANCE IS NECESSARY?

According to the City’s Appeals Brief submitted to the Ninth Circuit, “Delays in deciding to terminate a pregnancy or take emergency contraception may rule out a less invasive option or even the option to terminate a pregnancy altogether.”

“Such delays may also lead to increased medical costs and safety risks, as later-term procedures cost more money and have a higher complication rate.”

“The City is the medical provider of last resort for indigent individuals who need medical care, including women facing unexpected pregnancies. As such, the City would absorb the higher costs associated with delayed medical procedures related to abortion.”

It goes on to say “In many jurisdictions, including San Francisco, limited services pregnancy centers have engaged in misleading advertising campaigns. LSPs often purchase “pay per click” ads on online search services such as Google, so that persons searching for abortion services will see an ad for the LSP at the top of the results page.”

SUPPORT CIRCLE’S RESPONSE

Their accusations are alarming but lack any factual connection to consumer protection in San Francisco. The City was unable to identify even one person who suffered any of the harms that the Ordinance purports to protect against.

Regarding the accusation of delay, Support Circle offers clients timely appointments. Clients are able to receive an official pregnancy verification and dating of their pregnancy for free. Both of these are essential in order to make a decision about a pregnancy, because how far along the pregnancy is determines which procedures and services are available. Clients can generally make an appointment at Support Circle to be seen within three business days, as opposed to the typical two weeks it often takes to be seen at centers that are exempt from this ordinance. Ironically, this Ordinance could significantly limit the ability of those facing unplanned pregnancies to locate valuable resources that will empower them to make an informed choice!

Regarding the accusation of consumer confusion, Support Circle maintains absolute transparency with regards to the services we do and do not provide. It is stated explicitly on the website, on our intake forms, and to all callers who schedule appointments over the phone that we do not provide or refer for abortions.

These baseless accusations specifically disfavor pregnancy centers in favor of abortion clinics, simply because City Attorney Herrera does not agree with their viewpoint. This is part of a well-funded, nationally coordinated attack on pregnancy centers by NARAL, the largest abortion lobbying organization in the country, working together with City officials.

At their core, Support Circle is holding to their basic beliefs that women making a pregnancy decision should have a safe place to go that does not profit from any medical procedures resulting from that decision. They seek to create a community that goes the distance with those facing unintended pregnancies and to be a beacon of quality health care for the Bay Area.

WE NEED YOUR HELP!

To ensure that justice is restored for our cherished community and for non-profits nationwide, share this information with like-minded friends and:

Questions? Contact us at: friends @supportcircle.org if you have any additional questions or concerns.

Summary

Article Name

Response To The Pregnancy Information Disclosure and Protection Ordinance

Description

San Francisco has passed a false advertising law called the “Pregnancy Information Disclosure and Protection Ordinance” claiming its intention is “to prohibit Limited Services Pregnancy Centers from making false or misleading statements to the public about pregnancy-related services the centers offer or perform.” At first glance this seems benign.
But this ordinance is not actually about consumer protection since there has not been a single instance of a Support Circle client claiming to have been misled. The Ordinance is actually a pretext for directly attacking pregnancy centers by giving the City Attorney the power to intimidate, fine, and litigate them simply because he disagrees with their viewpoint.